Criminal Law — The Judiciary’s Blind Spot?

Tom Williamson

Criminal Law — The Judiciary’s Blind Spot?

By Tom Williamson

The English Judiciary is acknowledged as one of the best in the world and has proven to be an independent and rational force in the constitutional landscape. However, I would argue that it has a blindspot: a lack of judicial experience in the criminal law on a practitioner level, compared to the overrepresented civil law. This, I would argue, has had an adverse effect on the criminal law, as evidenced by a series of cases containing a disconnect from its principles and the opinions of its academics and practitioners. I shall advocate a number of ideas for reform based on how criminal appeals are handled from other jurisdictions, while proposing a more basic reform in the practice of judicial recruitment, as well a reform to the criminal appellate practice.

 

A good example of this lack of criminal law expertise is shown in the current make-up of the UK Supreme Court. The justices of theSupreme Court are principally lawyers with commercial and public law expertise.The two outliers are Lord Wilson (family law expertise) and Lady Black (who started her career with a broader civil/criminal practice, but later moved exclusively into family) [1]. This lack of diversity of experience is shown further by the previous make-up of the Supreme Court and its predecessor, theAppellate Committee of the House of Lords. As far as I can ascertain, the last law lord appointed who had any significant criminal law expertise was GeoffreyLane. There were more judges appointed to the Appellate Committee or theSupreme Court in the past 50 years whose careers, before their appointments to the judiciary, were in admiralty than in a criminal practice [2].

 

The lack of judicial diversity is also seen in the Court of Appeal. Of the five newly appointed justices, three were in purely commercial law, one in public, and one in intellectual property. Of the39 Court of Appeal judges, only Lord Justices Fulford, Irwin, Jackson andDavies can be said to have engaged in the criminal law as practitioners in any meaningful way [3].

 

It could be argued that judges are not required to have an expert grasp of every part of the cases they judge — so why then should there be an emphasis on criminal law expertise?A distinction must be drawn here between technical and legal expertise. It is not a requirement that judges should be totally in command of the technical aspects of the cases they judge — it’s not on this that their expertise is required. Rather, their expertise is required on the points of law, and it’s principles. Often the principles of certain areas of law carry over to others, but the criminal law is set apart from the rest of the law. Principles followed in other areas do not readily carry over to the criminal law. Further, the complete lack of any criminal practitioners on the upper benches means that, unlike other areas where there is someone at the top of their field to guide the discussion, on the matter of criminal law there is little (if any) of this expertise.

 

There are a few possible criticisms of this argument that must be addressed. It is true that the vast majority of the higher judiciary will have engaged with criminal work, either as a justice of the QBD, or as a Lord Justice of Appeal. However, the justices themselves will have spent a longer period of time as a barrister than as a judge, and experience of criminal law gained as a judge is no substitute for dedicating one’s life to criminal law work at the bar.

 

It is possible to rationalise the situation by saying that a lot of the work in the law isn’t actually about crime. However, the enormous lack of criminal experts, or those who primarily have specialised in criminal law, should be telling — this is well out of proportion to the amount of court time spent on criminal matters, especially considering one branch of the Court of Appeal is devoted to criminal matters.

 

There is an underrepresentation — but does this have an adverse impact on the criminal law? I would say that it is not desirable that such a unique and important part of our law has such little judicial representation in the upper courts — these courts are supposed to be experts in the law as a whole, not just a narrow slice of the civil law.Further, the lack of criminal law expertise shows that there may be an absence of any promotion pathways for the criminal bar, something that should, in the interests of fairness, not be cut off where other areas have pathways to the higher judiciary left open. This lack of experience has also contributed to the disconnect between the opinions of practitioners and academics of the criminal law, and a number of unsatisfactory superior court cases.  

 

There are five especially jarring cases in recent times. It is worth mentioning R v. Jogee. Lords Toulson andHughes (with commercial and family law backgrounds respectively) delivered the leading judgment which put to rest the doctrine of parasitic accessorial liability. [4] Although this had long been due for reform, the court refused to follow the practice statement on the doctrine, instead attacking it as something that hadn’t been part of English law until the 1980’s. Not only was that not fully true considering the history of the doctrine, but it hadn’t really been given the proper procedure of either the practice statement (to overturn older precedent) or a larger panel. [5] Where the reform of the civil law doctrine of illegality required a nine-justice panel in Patel v. Mirza, the important doctrine in R v. Jogee was only afforded five justices, a seeming disparity considering the impact of the cases on the doctrines: while the reform of parasitic accessorial liability lead to a retrospective change in the law, and number of appeals (as well as the removal of a useful prosecutorial tool), Patel didn’t lead to any retrospective change in the law, and was merely a reaffirmation of a previous attitude to the doctrine of illegality. [6] Another example of a disregard is Lord Bingham’s serious criticism of Rayner Goddard in the aftermath of Derek Bentley’s mercy petition. [7]Although there is no doubt there were issues in Goddard’s instructions, Bingham still made a ferocious attack that was well beyond the pale. In another trial, it  wouldn’t be surprising to think thatBentley wouldn’t have been convicted on the ordinary principles of secondary liability at the time (the felony murder rule, coupled with parasitic accessorial liability), and although the sentence was unjust, clemency was recommended by Goddard (and was ignored by Maxwell Fyfe), it’s hardly fair to criticise him for that. [8]. In R v. Gnago, was a case that where criminal expertise was wanting, with an opaque and unclear reasoning. The judgment was likely as attempting to placate public opinion as opposed to apply the law in a fair and sensible fashion [9,10] Ironically, Lord Kerr (the only justice on the Supreme Court who could be described as having some criminal expertise due to his mixed practice for the Northern Irish government, and his long work with the Diplock courts), was the one who gave the dissent. In R v. Hughes, another judgement by Lords Toulson and Hughes, a disregard for statute lead to an equitable judgment, but one that defeats the point of a statutory criminal law. This disregarded the clear statute and contributed to a an even more unclear law on causation [11]. At times, it reads as more of a constitutional case than a criminal one. Finally, Ivey v. Genting Casinos must be mentioned: although it is a civil case, it has effectively been used to change the criminal law Ghosh test of dishonesty [12, 13]. Not only does Ivey use similar constitutionally dubious methodology to Jogee, it also has effectively made obiter comments on a point not raised by either counsel(so consequently not debated in an adversarial court) a ground for overturning a long held criminal law principle. What’s more, the change in the test was justified in that it was out of step with the civil practice, ignoring the reasons for different standards of liability in each context and the difference of principle between the two areas of law (something that the Lords rather astutely recognised 17 years earlier in Hinks)[14]. It’s astonishing that the supreme court didn’t recognise this.

 

Then how shall we remedy this? One option is to look to the continent. In Holland, the Netherlands Supreme Court has four chambers; one each for Civil, Tax, Crime, and administrative actions. The justices assigned to the first three remain dealing with actions on the first three, and their areas of expertise will lie in those. [15] Similarly, in France, one of their four Supreme Courts, the Cour de Cassation, is divided into six divisions, with criminal being one of them. [16] Applying this to the English model, you could create a second division of the Supreme Court, like the EnglishCourt of Appeal, dealing with criminal matters, except it would remain strictly separate and be staffed by its own justices. I would reject this option on more practical grounds. There are 36 raadsheren (judges) in Holland, and no fewer than 85 trial judges and 40 deputy judges in France. Even if we limited the panel of justices, to provide a degree of parity one would need to add another12 criminal justices on the Supreme Court, which gives an extra £2.7million in judges’ salaries alone. Not only this, but the argument for further expansion into different chambers for administrative law would also be difficult to oppose, and the level of expansion would massively increase the Supreme Court’s £6million pound expenditure. [17, 18] Further, having a unified final court does have something to say for it, especially in terms of constitutional concerns, and it provides direct continuity with the history of the AppellateCommittee of the House of Lords.

 

Another alternative solution is found north of Carlisle, in the form of the Scottish High Court of Justiciary. The HighCourt is the final court of appeal in criminal cases, either when they are tried in first instance at the High Court, or in appeal from lower courts, and it is staffed by 35 commissioners. [19] An appeal from the High Court to theSupreme Court on a point of law is not permissible unless it is on an issue of devolution or human rights (which, in turn, can lead to issues of human rights being appealable). [20] Although it is not an ideal solution (as it is sometimes the first and only court in the appeal chain, and still suffers from alack of criminal law experience due to all the commissioners also being the judges of the Court of Session), it could provide a model for a solution. A separateCourt of Criminal Appeal, comprised of Lord Justices promoted from the CrownCourts, could provide a final appeal in criminal cases except where they conflict with constitutional or human rights issues (at which point they would be referred to the Supreme Court). This would also have costing issues: it would necessitate a significant increase in the costs of the court system: some of its benefits could be captured with a lower cost.

 

A third, and preferable solution, is to go on a “diversity drive” — increase the promotion of Crown Court justices and criminal law barristers into the High Court or the Court of Appeal. To clear up disparities of experience, Court of Criminal Appeal hearings could contain at least one judge with a criminal law background. Over time, the Supreme Court could feature more criminal law experts and this might avoid the issues seen in the above cases. A further reform could utilise the benefits of the Scottish model by changing the grounds of appeal to the supreme court on grounds similar to the High Court of Justiciary. There could be a number of benefits. Firstly, it wouldn’t demand an immediate change in the makeup of the Supreme Court from its largely civil/public law focus. Secondly, it would provide something approaching symmetry across Britain— it is not fair that a contentious crime committed in Berwick-on-Tweed will have more opportunities for appeal than one committed a 10-minute drive away in Fishwick. By partitioning criminal work, it facilitates the Supreme Court’s transformation into a more “constitutional court” (per Lord Reed), which may be a good direction to move in as more constitutional and administrative issues require determination. [18] As well as providing parity between the English andScottish legal systems, it would provide parity between other devolved jurisdictions. The Court of Criminal Appeal also handles appeals fromWales, and if the Welch Assembly gets the ability to affect criminal matters there should be parity between Scotland and Wales in terms of their criminal appeals to the Supreme Court. Hopefully, this could provide more coherency among the criminal law. As is shown by pairs of cases like Khan and Pace& Rodgers, Court of Appeal cases are often in direct opposition to each other, but by making the Court of Appeal the final appellate court for criminal matters, these discrepancies and confusions will necessarily be sorted out without needing to wait for an appeal to the time-pressed Supreme Court (which already very rarely hears criminal appeals), further clearing up the confusion in the criminal law.

 

Will these reforms bring about a more coherent system of criminal law? Maybe. However, what it will achieve is a more representative higher judiciary; one that could produce law that is more reflective of the principles of criminal law and reflective of how the criminal law is handled by criminal law practitioners.

 

(1)  https://www.supremecourt.uk/about/biographies-of-the-justices.html

(2)  SirJohn Sainty, “The Judges of England 1272-1990”, Selden Society 1993

(3)  https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/coa-biogs/

(4)  Rv. Jogee [2016] UKSC 8

(5)  APSimester, “Accessorial Liability and Common Unlawful Purpose” 133 LQR 73

(6)  Patelv. Mirza [2016] UKSC 46

(7)  http://news.bbc.co.uk/1/hi/uk/142313.stm

(8)  The Times, London, 8 June1971

(9)  R. Buxton, “Beingan Accessory to one’s own murder” [2008] CLR 275,

(10) J. Rodgers “Shooting (and Judging) in the Dark?”[2012] AR 8

(11)  R v. Hughes [2013] UKSC 56

(12)  Ivey v. Genting Casinos[2017] UKSC 67

(13)  R v. Ghosh[1982] QB 1053

(14)  R v. Hinks [2000] UKHL 53

(15)  https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Over-de-Hoge-Raad/Raad

(16)  https://www.courdecassation.fr/about_the_court_9256.html

(17)  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/836749/judicial-salary-schedule-oct-2019.pdf

(18)  https://www.supremecourt.uk/docs/annual-report-2018-19.pdf

(19)  http://www.scotland-judiciary.org.uk/34/0/Senators-of-the-College-of-Justice

(20) Scotland Act 1998, Schedule 6 Paragraph 11

(21)  https://www.supremecourt.uk/docs/speech-190306.pdf